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Conservation Resources 
Lig-Free® Type I 



8 P E E C 



HON. W L UNDERWOOD, OF KENTDGKY^ 



THE ADMISSION OF KANSAS AS A STATE 



THE LECOMPTON CONSTITUTION. 



DELIVERED IN THE HOUSE OF REPRESENTATIVES, MARCH 30, 1858, 



WASHINGTON: 
1858. 



Consfc^ 



SPEECH. 



The House beintr i" Coniniit.lee of the \Vhr)le, and 'iaving under consideration the 
d-pificiency bill — 

Mr.- UNDERWOOD said : 

;f Mr. Chairman : I rise to essay no effort at elocution, nor any ex- 
- tended observations upon the vexed question of Kansas. Contem- 

^* plating that question from a point of view differing from that of most 
if not all others that have addressed yoU;, entertaining in regard to it 
opinions that liave nut yet found expression, duty to myself demands 
that I should announce the reasons that shall control my action. 

To those who know me at home I shall have no occasion to defend 
myself against any charge of intentional infidelity to the South and 
her cherished institutions. From the dawn of my humble political 
career, until now, they have had no more devoted friend than 1. Born 
in a slave State, having lived in one all my life, a large owner of 
slaves, and re[>reseuting one of the largest slave districts in the Union, 
it would be nothing sliort of impossibility for me to become faithless to 
its real interests. 1 have heretofore expressed my opinions on this 
floor with sufficient fullness upon the subject of the relations of mas- 
ter and slave. I will not repeat them. It is sufficient for me to say 
that I honestly regard them as the best possible relations which can 
exist between two dissimilar and unequal races of men tlirown 
together upon the same territory, and that every attempt to create 
other relations than these, whilst the two races thus coexist, lias thus 
far only deepened the degradation and misery of the black race. I 
should, therefore, instead of circumscribing slavery, be perfectly wil- 
ling to see it extended, with the consent of those immediately inter- 
ested, to the remotest confines of the republic. It is not, then, be- 
cause, in any possible form, I am opposed to slavery, that I am opposed 
to the Lecompton constitution for Kansas. Indeed, rather, it is -because 
I am the friend and advocate of the peculiar institutions of the South 
that I am in part constrained to object to that constitution, 

Mr. Chairman, there are new theories of government and motives of 
action presented by the advocates of the Lecompton constitution that 
cannot fail to grate harshly on southern ears : 1st. In order to induce 
our assent to the admission of Kansas under the Lecompton constitu- 
tion — which constitution provides that '• after the year 1864, whenever 
the legislature shall think it necessary to amend, alter, or change 
this constitution" — they shall proceed to do so according to certain 
salutary precautions and methods prescribed in the instrument, it is 
now contended that tin's fundamental provision may be disregarded, 
and that steps, may be immediately taken to abolish it so soon as 
Kansas is admitted under it. The people of the United States have 
heretofore been taught to regard constitutions as the sacred reposi- 
tories of their dearest rights — as removed, by the solemnities by which 
they have been inaugurated, from the flippancies of change — and as 
oonstituting the bulwarks u|)on which they might repose in the 
security of established order. But now, for the purpose of making 
room for this new comer, all these established theories of government 



4 .-W^z 

are forsaken, and pass away as the baseless fabric of a dream. A new 
light dawns upon the political sky. and anarchy is organized. Con- 
stitutions, which were intended heretofore for the protection of minor- 
ities, lose their power. Majorities, we are told, at their pleasure, may 
cast them down, and riot on the rights which constitutions were 
intended to preserve inviolate. The distinctions heretofore so well 
understood and recognized between a legislative act and a constitu- 
tional provision is no more, and the only step which remains to be 
taken, since the all-prevailing voice of mere numbers is enshrined, is 
to declare that this voice need not even proclaim its edicts in written 
laws, but has only, in the fury of the mob, to issue its mandates-, and 
execute; them. Strangest to me of all this is, that this wild doctrine 
•finds countenaQce with my southern friends, interested, like me, in 
preserving and maintaining to the last our southern rights and our 
southern property. Why, sir, with such govermental policy as this, 
not only will the general prosperity sicken — for all the interests of 
society must sicken with the instability of government — but the 
peculiar institutions of the South must die. Let me read you what 
is already said by a black republican organ, the Chicago Tribune, on 
this subject : 

" It is now said that the act admitting Kansas into llie Union, under the Lecompton con- 
stitution, will contain a clause declaring that the people of the new State may amend their 
constitution at anytime they please, though in doing, so 1 hey violate a plain and emphatic 
provision of the constitution itself. With this power to overhead constitutional barriers, 
recognized by solemn act of Congress, we shall be disposed to abate our opposition to Le- 
compton and help it along ; but with this express understanding, that the rule laid down for 
Kansas shall be applied to the Constitution of the United States ; and that when a majority 
of the legal voters of the republic choose to demand an amendment of the fundamental law, 
the mode of amendment prescribed in the Coustitution shall not stand in the way of the 
attainment of their will." 

Mr. Chairman, I enter my solemn protest against this suicidal 
doctrine. Kansas, with her Lecompton constitution, brings with her 
no benefits to any part of our common country which would com- 
pensate a solitary State for the damning tendency of such a dogma. 
And if it shall be inaugurated into the political theories of the times 
by the present administration, I shall preserve the proud consciousness 
of saying that it was by no act of mine you did it, and, therefore, 
''shake not your gory locks at me." 

But it may possibly be said (I hardly think that any candid man 
will venture to say it) that this principle, touching the right of the 
majority to override the terms and forms of the constitution by 
amendments, alterations, or abrogations, in violation of those terms, 
is not contained in the act passed by the Senate. Mr. Chairman, it is 
there, and, I grieve to say, insidiously there. If it is to be there at all, 
put it in like a man. Speak it out like a free man. Let us have no 
quibbling about it. But it is there plain enough. The honorable 
senator [Mr. Pugh] proposed in plain, direct terms to insert it. His 
„ amendment was withdrawn by himself, because, as he said, its sub- 
stance was embodied in the bill as it now stands ; and it was thus 
withdrawn to make room for the more insidious and entrapping pro- 
visions now contained in the bill, to wit : " that nothing in this act 
shall be construed to abridge or infringe any right of the people, 
asserted in the constitution of Kansas, at all times to alter, reform, or 
abolish their form of government in such manner as they may think 



proper." Why was this clause inserted? Does anybod)^ suppose 
that, if Kansas should become a State, she would thereafter be de- 
pendent on Congress for her right ''■ to reform or abolish her form of 
government in such manner as she thought proper ?" Certainly not. 
For what purpose, then, was this formal disclaimer of a power or 
right of Congress to do that which no one ever supposed before Con- 
gress had the power to do asserted in this bill ? It was, Mr. Chair- 
man, a negative pregnant of most affirmative meaning. It is a direct in- 
tervention by Congress in the aiFairs of Kansas, in violation of your cry 
of non-intervention. Your President, sir, had, in a labored argu- 
ment^ in his Kansas message, announced the doctrine that "a majority 
can make and unmake constitutions at pleasure. It would be absurd 
to say they can impose fetters upon their own power which they cannot 
afterwards remove. * * * jf^ therefore, the provision changing 
the Kansas constitution after the year 1864 could, by possibility, 
be construed into a prohibition to make such a change previous to that 
period, this prohibition would be wholly unavailing. The legislature 
already elected may, at its very first session, submit the question to a 
vote of the people, whether they will or will not have a convention to 
amend their constitution, and adopt all necessarj^ means for giving 
effect to the popular will." It was necessary, therefore, to insert 
these provisions in the bill ; but lest an outspoken expression of them 
should justly offend the public ear, and justly alarm the settled and 
conservative elements of society, they have been couched in the covert 
and ambiguous phrase quoted in the law. But they will not the less 
confidently be appealed to as the expression of the legal right, in the 
abolition portion of the people of Kansas, to abolish the few remnants 
of slavery that exist in that devoted Territory on the instant, should 
Kansas be admitted under the Lecompton onstitution. And then 
will come, sir, in the event Kansas is thus admitted into the Union 
with her Lecompton constitution, under the provisions of this act of 
admission, one of those struggles, weak and feeble perhaps it may 
be, compared with others which I yet contemplate in her eventful his- 
tory, a struggle in which her peace may be seriously jeoparded, and 
the rights of the slaveholder — rights which I feel it my duty here to 
forewarn, if I cannot forearm — will inevitably be sacrificed. According 
to the programme thus suggested by the President, and significantly 
and obsequiously intimated to Kansas by the Senate bill, a new con- 
stitution will be adopted prior to 1864, in disregard of the Lecompton 
constitution. It will abolish slavery ; the slaveholders in Kansas 
will assert their rights under the Lecompton constitution, wrongfully 
overturned, in violation of the provisions for its own amendment ; and 
I do not hesitate to declare my opinion that there is not an enlightened 
jurist in America but will recognize their claim. That agitation, 
bitterness, and strife will result, even from this comparatively minor 
conflict, no one can doubt ; and, I ask, is it the part of statesmanship 
thus to legislate in blind disregard of such inevitable consequences? 

Mr. Chairman, the great excellency of American liberty is, that it 
ie the liberty of law. The President, in the principles which I have 
tlius deduced from his Kansgis message, proclaims the European idea 
of liberty, which is the liberty of license. The one is peaceful, the 
other rebellious. He attempts to fortify his specious conclusions by 



6 

a reference to those grand lumlamontal principles of human liberty 
which underlie all free governments, and whicli, in proper cases, 
are the last resorts of nations No people so well as ours knows the 
right of revolution, and none, thank God, in a most righteous cause, 
God being our helper, have asserted it no triumphantly. 1 trust, how- 
ever, that no legislative or political necessity will ever compel any 
portion of our beloved country again to resort to this terrible arbitra- 
ment. And it I had no other reason for voting against the admission 
of Kansas under the Lecomptou constitution, 1 should be justified in 
doing so, in order to avoid the dread expedient approximating revolu- 
tion, to which the President refers the peoj)le of Kansas, whereby to 
extricate themselves from the difficulty in which his policy has in- 
volved them, by a change of their constitution, regardless of the forms 
and methods prescribed in the constitution itself. 

The second of the motives which are urged upon us is, that it is 
the shortest way to make Kansas a free State. The President, in his 
Kansas message, after correctly stating that Kansas is now a slave 
Territory, tells us, in this remarkable language : ' ' Slavery can, there- 
fore, never be pi-ohibited In Kansas, except by means of a constitu- 
tional provision, and in no other manner can this be obtained so 
promptly, if a majority of the people desire it, as by admitting it into 
the Union under its present constitution." 

Mr. Chairman, when I consider this opinion of the President, in 
connexion with the means he suggests of effecting the object of making 
Kansas a free State, to wit : by the unauthorized alteration of her 
constitution in the manner I have stated, I cannot forbear the expres- 
sion of my surprise at the support which his purpose and his policy 
receive at the hands of the south. For myself, I am free to declare 
that I am not anxious to pursue that path which shall most promptly 
admit Kansas into the Union as a free State — not that I would throw 
obstacles in the way of tlie admission of a State, whether slave orlree, into 
the Union, when justly entitled to come in — but when I consider how 
rapidly the number of free States has increased and is increasing ; that 
the safe equality that so long existed between the free and slave States 
has passed away, giving place to an existing preponderance in favor 
of the former, to be augmented by other free States pressing at our 
doors for admission ; more than this, when I consider who are likely 
to come, as the senators of Kansas, to take their places here — Lane 
and Robinson, perhaps, reeking with bitterness and wrath against the 
institutions of the south, from the fierce conflicts and raids in which 
so long and recently they have been engaged — I confess to no indecent 
haste for the admission of Kansas ; and the last thing, 1 think, that ever 
I shall be guilty of doing will be to dissolve the union of these States 
because she is not admitted "so promptly" to swell the tide of politi- 
cal ascendency that beats already so heavily against the south. 

In this connexion, Mr. Chairman, I would invite your attention to 
a most singular fact — singular, indeed, it would be if it did not recur 
in every phase of democratic policy and tactics. It is the rare and 
singular facility — I should rather call it cro/f. — of the democratic party 
to give to all their measures a northern and a southern aspect. In no 
instance have they succeeded so well, 1 ween, as in this. They did 
apprentice work in the repeal of the Missouri Compromise, when they 



declared in the north it was a measure of freedom, and in the south 
that it was the unlocking of the Territories for the expansion of 
slavery ; they did journeymen's work in their divers interpretations 
of squatter sovereignty, suited to all latitudes and localities ; and 
they are doing master work now, when this very measure of the 
admission of Kansas under the Lecompton constitution is advocated 
by the President and his northern supporters as the '' promjjtest" 
manner of prohibiting slavery in that State, whilst their southern 
brethren are advocating it, and are ready to split the Union about it, 
becauses it recognizes slavery north of 36° 30' — albeit, it shows its 
head there for a moment and disappears thenceforth forever. You 
are too familiar with the bold and ardent declarations of my southern 
friends to require me to cite instances to prove the burning zeal with 
which they contemplate and advocate admission under the Lecomption 
constitution. It will be more novel, and not less instructive, that I 
quote to you what John Van Buren, the most sagacious of the demo- 
cratic abolitionists of the north, declares on the same subject. In his 
celebrated speech at Tammany Hall, he says: 

" By admitting Kansas into the Union, you put her in a condition where she can cure all 
tliis evil — stop fraud, and make herself a free State ; and those men from the free States who 
refuse this opportunity to admit Kansas with this population and their disposition to make the 
State free, and who would keep her out as a slave State, as she now is, until the population 
is thrown there to make her permanently a slave State, will have to answer to their constitu- 
ents for the result they have thus produced." 

And this sentiment, we are told, was received with "applause" 
by the vast democratic audience assembled to hear him. Why, 
Mr. Chairman, John Van Buren did not announce a new dem- 
ocratic policy at the north. Let me read to you from a handbill for a 
democratic meeting at Mifliinsburg, Pennsylvania, September, 1856 : 

' ' Democrats ! whigs ! republicans I turn out and learn the fact that it is the democratic 
party that is laboring for freedom for Kansas, the assertions of opposition orators to the 
contrary notwithstanding." 

I could quote from Dix, and other orators of this political echool, but 
I forbear. I however affirm that the northern democratic advocates 
of the Lecompton constitution all maintain this view, contending that 
it is another measure for freedom. Should not these bold contrasts, 
then, teach forbearance to our extreme southern friends? especially 
when they were told the other day on this floor, by one of their north- 
ern allies^ that the north got the oyster whilst the south got the shell, 
in this division of the spoils. Are they not, at least, sufficient t<3 
silence the cry of "abolitionism," which, I doubt not, is preparing to 
be raised throughout the south against all those who shall dare to 
resist this measure^ so really destructive of every principle the south 
should hold sacred and inviolate? But, Mr. Chairman, more than 
this, is it not time for us to have a straightforward and honest policy? 
Have we not been paltered with long enough in a double sense ? How 
much longer will the south — or the north either — suffer itself to be 
deluded thus witli fallacious hopes, having the Avord of promise kept 
to the ear but broken to the hope? For myself, I am weary of the 
Janus face and the forked tongue. 

I desire now, Mr. Chairman, to invite your attention to the ques- 
tions: 1st. Is the Lecompton constitution of such legal validity and 



8 

iorct) Jis to claim adoption from its inherent legality? and 2d. If legal 
in i'orni, are there not facts connected with it that render it invalid? 
And^ firstj as to its legality : I shall not go back to inquire into 
the validity of the territorial legislatures of Kansas. I shall take 
them for granted, for all the purposes of my argument, however great 
and grating may have been the improprieties practiced in the earlier 
elections under the territorial law. Nevertheless^ those legisratures 
have been recognized, and must be considered the legislative branch 
of the de facto government of Kansas ; and I shall concede to them 
the right to exercise all powers delegated to them by the authority 
which created them, to wit : the Kansas-Nebraska act. It will not 
be contended that the legislature of a Territory can exercise, like the 
legislature of a State, any independent, sovereign powers. The legis- 
lature of a Territory is but the creature of the law establishing the 
Territory, and has no power to step beyond it. It then becomes ma- 
terial to inquire what powers did Congress confer upon the Kansas 
legislature? The language of the act is: "That the legislative 
power of the Territory shall extend to all rightful subjects of legis- 
lation consistent with the Constitution of the United States and this 
act." I would venture an original argument upon the nature and 
extent of this qualified and limited legislative power, if argument upon 
it had not long ago been merged in authority, and that authority so high 
with those to whom I would commend it, that nothing is wanting to 
give it absolute command. Upon the admission of Arkansas, during 
the administration of President Jackson, the question arose, how far 
the territorial legislature was competent to inaugurate the prelimi- 
nary measures to cast oif its territorial existence, and to prepare to 
assume the attitude of a State ? This question was submitted to his 
Attorney General, Mr. Butler, who used the following language: 

" To suppose that the legislative powers granted to the general assembly include the au- 
tiiority to abrogate, alter, or modify the territorial government established by the act of Con- 
gress, and of which the assembly is a constituent part, would be manifestly absurd. The act 
of Congress, so far as it is consistent with the Constitution of the United States, and with the 
treaty by which the territory, as a part of Louisiana, was ceded to the United States, is the 
supreme law of the Territory ; it is paramount to the power of the territorial legislature, 
and can only be revoked or altered by the authority from which it emanated. The general 
assembly and the people of the Territory are as much bound by its provisions, and as inca- 
ble of abrogating them, as the legislatures and people of the American States are bound by 
and incapable of abrogating the Constitution of the United States. It is also a maxim of 
universal law, that when a particular thing is prohibited by law, all means, attempts, or con- 
trivances to effect such thing are also prohibited. Consequently, it is not in the power of the 
General assembly of Arkansas to pass any law for the purpose of electing members to form 
a constitution and State government, nor to do any other act, directly or indirectly, to create 
such new government Every such law, even though it were approved by the governor of 
the Territory, would be null and void. If passed by tlioni, notwithstanding liisveto.by a vote 
of two-thirds of each branch, it would still be equally void." 

This was the ground taken by the administration of General Jack- 
son in regard to Arkansas, and the position is an unanswerable one. 
Any law passed by the territorial legislature of Kansas — which pos- 
sessed no greater authority than the territorial legislature of Ar- 
kansas — initiating a convention, is utterly null and void. 

In addition to this, I present you the authority of Mr. Buchanan, 
the present distinguished Chief Magistrate of the United States, whose 
early counsels are so worthy of the consideration of his later years, 
and who, upon the occasion of the admission of Michigan, expressed 
himself in the following emphatic language : 



i 



9 

" We ought not to apply the rigid ruley of abstract pohtical science too rigorously to such 
cases. It has been our practice heretofore to treat our infant Territories with parental care, 
to nurse them with kindness, and when they had attained the age of manhood, to admit 
them into the family without requiring from them a rigid adherence to forms. The great 
questions to be decided are : Do they contain a sufficient population? Have they adopted 
a republican constitution? And are they willing to enter the Union upon the terms which we 
propose? If so, all the preliminary proceedings have been considered but mere forms, which 
we have waived in repeated instances. They are but the scaffolding of the building, which 
ia of no further use after the edifice is complete We have puisued this < ourse in regard to 
Tennessee, to Arkansas, and even to Michigan. No senator will pretend that their territo- 
rial legislatures had any right whatever to pass laws enabling the people to elect delegates to 
a convention for the purpose of forming a State constitution. It was an act of usurpation on 
their part." 

And on the same subject, Mr. Calhoun, the brightest constitutional 
luminary of all, used the following brief but emphatic words: 

" My opinion is, and ever was, that the proceeding of the people of Michigan, in taking 
the first steps to form a State constitution without waiting for the assent of Congress, was 
revolutionary." 

If these quotations fail to convince, then, so far as my democratic 
auditors extend, they would not be convinced though one rose from 
the dead. But to obviate these high authorities and these unanswer- 
able arguments, it is now stated that the Kansas-Nebraska act is itself 
an enabling act, dispensing with all others. Unfortunately for those 
who affirm this, it proves too much for them. That act, it is true, 
'' leaves the people perfectly free to form their domestic institutions in 
their own way, subject only to the constitution." Prior to it the 
people had been restrained in this '' perfect freedom" by the provi- 
sions of the Missouri compromise line, which prohibited slavery north 
of 36° 30' north latitude ; and this provision was intended merely to 
apply to the condition and privileges of the people, when, subsequent 
to the repeal of this line, they should come legally to form their do- 
mestic institutions in their own way, and was not intended to confer 
upon them any new powers or privileges, contrary to the consent of 
Congress, whereby they might at pleasure cast off their territorial 
allegiance. If such be not the true interpretation of this clause — if it 
conferred upon the people of the Territory the inherent right at any 
time they pleased to form a constitution and claim admission abso- 
lutely under it, how can we resist the application of those who formed 
the justly and universally repudiated Topeka constitution for admis- 
sion under it into the Union of these States. Their constitution is 
first in point of time, and it will be observed that it is not the legisla- 
ture of the Territory, but the " people of the Territory," that are left 
'' perfectly i'ree to form their own domestic institutions in their own 
way;" and hence, upon this'hypothesis and language of the law, you 
need not apply for an enabling act even from the territorial legisla- 
ture, because that language does hot confer the power upon the legis- 
lature, but confers it " on the people;" and the high prerogative of 
making a constitution is not a legislative function. Besides, if the 
Kansas-Nebraska act enabled the legislature of Kansas to call a con- 
stitutional convention, why did President Pierce recommend, and why 
did the democratic Senate under his administration, with singular 
unanimity, pass an act authorizing Kansas to call a convention. 
Without pursuing this argument further, I conclude, from the high 
authorities cited and from the reasons already adduced — 1st. That the 
legislature of Kansas was not competent to commit an act of political 



suicide, and to subvert and overturn the very power of v/liicli tliey 
were but constituted the keepers, guardians, and preservers, by the 
Congress of the United States; and 2d, that the Kansas territorial law 
was in no sense an act which enabled its legislature thus to subvert 
the territorial existence at its pleasure. 

It follows, then, that the Lecorapton constitution is not an im- 
perative legality. That it cannot challenge and demand our implicit 
and unquestioning submission, because it comes accredited to us by all 
the regularities and forms of law. But losing these high pretensions, 
which are all the title that it brings, it loses all. For, unless it can 
be sustained upon the ground of legitimacy, it has no other foundation 
to sustain it. 

Mr. Chairman, let it not be inferred from anything I have said that 
1 hold it illegal or rebellious for a territorial legislature to institute 
preliminaiy proceedings in order to bring about the transition from a 
territorial to a State condition. All I wish to establish is that their 
proceedings bind not the government of the United States, or render 
it in any sense imperative upon such goverment to admit such Territory 
into the Union as a State, merely because the territorial legislature 
have gone regularly through the formalities it may have instituted. 
The power of the United States, and the duty of the United StateSj 
stand untouched and unatfected by these subordinate territorial for- 
malities, except so far as they may address themselves to the Congress 
of the United States as matter of petition, deserving its favorable con- 
sideration from their inherent merit, and not from their inherent le- 
gality. 

2. If the Lecompton constitution be legal in form, are there not 
facts connected with it that render it invalid in fact ? Mr. Chairman, 
this field of my argument has been perfectly exhausted. Let me add 
but a few words to what has been so much better said by so many 
others. And let me premise that the Congress of the United States 
is under no stress, or legal or political necessity, to admit new States 
into this confederacy. Neither Kansas, nor any other Territory, can 
demand as a right admission into this Union ; although she may have 
formed a republican constitution, and although every man, woman 
and child within her borders desired it, yet the right and the power 
to admit or not to admit, according to its own will and pleasure, rests 
alone in the Congress of the United States. 

This high power and unlimited discretion is expressed in the Con- 
stitution of the United States in these simple words: " New States 
may be adiaitted by the Congress into this Union.'" In the exercise 
of this high prerogative, perhaps the most morally grand of any 
which our current' history exhibits, the Congress has the right, and 
it is its duty, to look with the utmost scrutiny and caution upon every 
fact, circumstance, and condition which bears upon the prudence, 
fitness, and propriety of the permanent relations it is about to establish 
between the new comer into the confederacy and the old; and if there 
be any tin^e and any act which, above all otliers, should demand the 
exercise of the utmost good faith, forbearance, and honesty, it is this. 
I do not hesitate to declare that, if new States are to be precipitated 
into this confederacy contrary to the consent of a material portion of 
the old ones, and {above all, with constitutions contrary to the ascer- 



I 



11 

tained will ol' a matt^rial portiou of the citizeus of such new Stale, then 
are the sappers and miners at work beneath the foundations of the 
republic, and the enemy to its perpetuation has entered within its 
walls. 

Mr. Chairman, if we could for a moment relieve ourselves of 
all party bias and excitement, we should find the facts pertaining to 
the Kansas question to be few and simple. A portion of its people 
are in favor of a constitution with slavery ; another portion is in 
favor of a constitution without it. For years they have been \Taging 
a disreputable contest, disturbing the tjuiet and repose of the Union, 
and seeking political advantages of each other. Both of these parties 
have made themselves a constitution — one at Topeka, relying for its 
support upon your naked doctrine of Popular Sovereignty ; the other 
at Lecompton, relying upon popular sovereignty, endorsed by Legis- 
lative Intervention without congressional sanction. The latter is 
much the best, I think, of the two, but both bad. Each party has endeav- 
ored, as far as possible, to ignore the other and to refrain from a 
recognition of the legal validity of its acts. The free State party 
believed it was outraged and trodden down by an invasion from Tvli-^- 
souri, which gave despotic character to the legislature, inasmuch ly it 
was elected, not by the people of the Territory but by alleged inva/; .s, 
and hence, thereafter, it abstained from participating in el '-^'^iis 
authorized by this legislature. Whilst the slave State party il d 
the extent of the force and violence charged by their opponents, and jus- 
tified themselves by the charge that emigrant aid societies had thrown 
upon Kansas, for the purpose of controlling its domestic institutions, 
a population as spurious as any introduced from adjacent States. 

Thus waged the war, until delegates were authorized to be chosen 
by the territorial legislature to form a constitution preparatory to the 
admission of Kansas into' the Union. From this point onward we 
have a right, and it is our duty, to look, in order to ascertain what it 
is proper for us to do. Delegates under the law were to be appor- 
tioned among the thirty-four counties of the Territory according to 
their population, to be ascertained by a census directed to be taken. 
This was fair and right, and ought to have been done ; but, if we 
may believe tlie very highest authorities on this subject, it was not 
done, and by reason of the failure nearly one-half of the counties of 
the Territory were denied any representation in the convention that 
formed tl)e constitution under which they were to live. Hear what 
Govertior Walker and Secretary Stanton say on this subject. Governor 
Walker, in his leUer to General Cass, of the loth December, 1857, says : 

" In iiineteeii of these counties there was no census, and therefore there could be no such 
apportionment there of delegates, based upon such census ; and in tifleen of these counties 
there was no registry of voters. These fifteen counties, including many of the oldest organ- 
ized counties of the Territory, were entirely disfranchised, and did not give, and (by no fault 
of their own) could not give, a solitary vote for delegates to the convention." * » * 

" In fifteen counties out of thirty-four there was no registry, and not a solitary vote was 
given or could be given for delegalos to the c,onvention in any of tliese counties." 

Governor Stanton, in corroboration of this statement, in his address 
to the people of the United States, says : 

" The registration required by law had been imperfect in all the counties, and had been 
wholly omitted in one-half of tlieni ; nor could the people of these disfranchised counties vote 
in any adjacent count}', as has been falsely suggested." 

I could multiply proofs on this subject, but it is unnecessary. These 



12 

are sufficient^ except to those determined not to believe. It is true 
that many of the free State part}'^ refused to vote for delegates to form 
the constitution. They professed to believe, and perhaps did believe, 
they would be defrauded out of their votes by their opponents, who 
had complete control of all the machinery by which the elections were 
to be conducted ; and they were unwilling, as before stated, by voting 
at an election authorized by what they denominated the Bogus Legisla- 
ture, to recognize the validity of its acts. I am not their advocate 
or defender. I think in all this they did wrong ; and the other 
side were wrong in not taking the census and registration as far 
as practicable, to give to all the right and unquestionable American 
privilege of being represented in the body v/hich was to ordain their 
highest law. The free State party in some of the counties made an 
attempt to elect delegates to the convention, notwithstanding the 
failure to take the census and registration. Their delegates were re- 
jected. I will not dwell on these things. One fact of importance, 
during the progress of this election, occurred. It was the unequivo- 
cal, clear, distinct, and absolute promise of the governor, in his own 
name, and in the name of the President of the United States ; it was 
the promise of his secretary, Mr. Stanton ; it was the promise of Mr. 
Calhoun and many of his associates, that the constitution, when formed 
by the convention, should be submitted to the people for their ratifica- 
tion or rejection. 

Goveror Walker, everywhere in Kansas, pledged his honor, by the 
approval, as he told the people, of the President and his cabinet, that 
the constitution should be submitted. Without stopping to refer to 
his inaugural, in which he is most emphatic on this point, I read from 
a speech of his delivered at Topeka, on the 8th of June, 1857, and 
published in the Topeka Statesman of the 9th : 

"At the next election, in October, when you elect the territorial legislature, you can 
repeal these laws ; and you can also, by a majority of your own votes, adopt or reject the con- 
stitution presented for your consideration next fall. Can you not peaceably decide this 
question in the mode pointed out by the act of Congress, if you, as you can and will, have 
a full opportunity of recording your vote? [A voice, 'How are we to get it?'] You will 
tret it by the convention submitting the constitution to the vote of the whole people. [A 
voice, ' Who is to elect the convention? That is the grand question.'] Gentlemen, it is a 
comparatively small point by whom the constitution is .submitted. Don't let us runaway 
after shadows. The great substantial point is this : Will the wliole people of Kansas next 
fall, by a fair election, impartially and fairly conducted by impartial judges, have an oppor- 
tunity to decide for themselves what shall be their form of government, and what shall bo 
their social institutions ? I say they will ; but I go a stop further. [A voice, ' Have you the 
power?'] If I have not the power to bring it about, if the convention will not do it, I will 
join you in lawful opposition to their proceedings. [Cries of • Good !' 'Good!' ' We hold 
you to your promise. Nothing can be asked fairer than that.']" 

This with me, is high matter of substance. Here you see a people, 
jealous of their rights, holding earnest question with their governor, 
and receiving from him solemn answer, touching those important 
rights upon which we are acting now ; and, in consideration of his 
solemn pledge that the constitution should be fairly submitted to 
them, yielding it up indifferently to be formed by those who might be 
selected to do it, yet relying upon their own ultimate right to pass 
judgment upon it in the last resort. Shall we obtain the benefits of 
their non-action, without complying with the conditions upon which 
it was procured? Shall we, in any sense, fftil to comply with the 
8<ilemn assurances thus given ? It will not do to say that Grovernor 



13 

Walker had no authority to make these assurances. That he had the 
authority of the President there is no doubt. He states it, and it is 
not denied. Whether he had authority or not, the confiding people 
believed he had, and it would be inconsistent v/ith all my notions of 
propriety and honor to take advantage of their ignorance or credulity 
to wring from them advantages which they at least held sacred. I 
cannot — I will not do it. 

How the constitution was submitted, Mr. Chairman, we all know. 
The slavery clause v/as only submitted ; and, strange to tell, you 
could not vote against the slavery clause without swearing to support 
the constitution with slavery. An act like that needs no comment. 
I am a slaveholder and a friend of slavery ; but, thank God, slavery 
needs no instrumentality like that for its extension, and its most dan- 
gerous adversaries are those who would identify it with violations of 
personal propriety and honor, and especially with an outrage upon the 
unquestioned American right of the people, when forming a constitu- 
tion, to say whether it shall exist with them or not. When the slavery 
clause of the constitution was submitted, some 6,220 are reported to 
have voted for it ; of which subsequent investigations have shown 2,720 
were fraudulent, 569 votes were cast in favor of the constitution with- 
out slavery ; thus leaving only 2,937 votes in favor of the constitution 
with slavery. So great was the excitement of the people of Kansas at 
the events I have tlius detailed, that we are informed by Governor 
Stanton that they were almost on the point of civil war, which was 
only prevented by his convening the legislature. 

In the hope (which proved successful) of restoring peace, a law was 
passed taking the sense of the entire people for and against the con- 
stitution, abolishing all test oaths, and leaving all free to vote just as 
they please. The result of that election was that 10,226 persons 
voted against the constitution. The friends of the Lecompton cousti- 
tion did not vote. This election was held on the 4th January, 1858. 

Mr. Peyton, (inteFrogating.) I ask my colleague whether he be- 
lieves that the 10,226 votes cast on the 4th of July were all bona fide 
legal votes? 

Mr. Underwood. I will state, in all frankness, that it is my opinion 
— mere guess work, of course — that it is highly probable they were not. 
I will say, however, in all candor to my colleague, whose interruption 
is agreeable, or certainly not embarrassing to me, that there is no 
proof that any of that vote was fraudulent or illegal, and that all 
concurrent testimony agrees in proving that three-fourths or more of 
the inhabitants of Kansas are inimical to the constitution. 

Mr. Peyton. I would like to know from my colleague how he 
arrives at that conclusion ? 

Mr. Underw**od. I am gratified at the opportunity of saying to my 
friend that I arrive at it from various sources of imformation — authen- 
tic sources which are open both to him and to myself — and from private 
statements from gentlemen of the highest respectability cognizant 
of the facts. It is the uniform report coming to us from Kansas, that 
there is a decided, an unqualified and almost an unmitigated dis- 
inclination on the part of the people to accept the Lecompton con- 
stitution. I trust my friend is answered. And now I ask him whether 



14 

he would force any constitution or form of government upon any peo- 
ple against their will? 

Mr. Peyton. I will reply to ray colleague very frankly and very 
candidly that I would not. 

Mr. Underwood. I knew, .sir, that there was a Kentucky spirit 
boating in my friend's bosom which would keep him from such a course. 

Mr. Peyton. Will my friend permit me to state my own povsition in 
regard to this matter ? 

Mr. Underwood. I hope my colleague will not exhaust too niucb of 
my time. 

Mr. Peyton. I ask him whether in all State, county, and presiden- 
tial elections it is not well known that there are more or less improper 
fraudulent votes polled? That there have been fraudulent votes 
polled in Kansas I have but little doubt, and I haA^e as little doubt 
that in any election, from the first authorizing of the convention down 
to the final ratification, there have been votes enough withheld to have 
changed the result. My colleague says that if the fraudulent votes 
on the ratification of the constitution were thrown out there would be 
only 2,700 votes left. Well, that may be so; but then those who did 
not go to the polls authorized those who did to vote for them, and 
this left a clear majority of 2,700 votes in favor of the constitution. 
Now I ask my friend if he thinks that the votes cast on the 4tli of 
January were all legal? I say that out of the 10,200 votes cast on 
that day against the Lecompton constitution 9,600 were polled in 
those registered counties where the pro-slavery party had cast 6,000 
votes in favor of the constitution ? 

Mr. Underwood. In regard to the legality of that election, my 
friend will bear me witness that I have, at least, endeavored to estab- 
lish the proposition that these elections were not of such a character 
as to demand of the people to come to the pollsj and hence, that his 
position does not apply, that those who stay away from the election 
authorize those who go to vote for them. My friend asks me in re- 
gard to the 9,600 votes cast in the counties which had already given 
6,000 majority in favor of the constitution ; and I ask him if he will 
venture to say, on his integrity as a gentleman, and a statesman well 
informed on this subject, that he believes that the Lecompton consti- 
tution is the will and voice of the majority of the people of Kansas ? 
I speak merely of the question of numbers, not of the question of le- 
gality, because I have disposed of that. 

Mr. Peyton. I shall answer your question fairly and properly. 

Mr. Underwood. I know you will. 

Mr. Peyton. The remark which I made in regard to the 9,600 
votes was for the purpose of calling my colleague's attention to this 
fact, that out of the 10,250 votes polled on the 4th of January, 9,600 
votes were polled in registered counties v/here 6,000 votes had been 
polled in favor of the Lecompton constitution. 

Mr. Underwood. I only asked you your opinion, whether you be- 
lieve the Lecompton constitution was the will and voice of the ma- 
jority of the people of Kansas, and whether the votes in its favor were 
fraudulent or not ? 

Mr. Peyton. That is my opinion. I frankly tell you now that I 
do not know who has the majority. The list received is sufficient to 



15 • 

satisfy me that the contest is a close one, and I have no idea that the 
anti-Lecoraptonites have such an overwhelming majority as they 
claim. 

Mr. Underwood. While my friend may thns remain in doubt, the 
authentic documents produced before the Congress of the United 
States, and which have been heretofore adverted to by many a speaker, 
satisfy my mind and remove all doubt as to what the will of the peo- 
ple of Kansas is in respect to that constitution ; and that is, that 
they are pre-eminently against the Lecompton constitution. 

Thus stand the facts; and the naked question is, shall we admit 
Kansas into the Union at the instance and request of 2,937 of her 
people, or shall we not admit her at the like instance and request of 
10,226. If figures could decide it, it seems to me easy of solution. If 
the sublime truths which underlie the American republics, whereby 
majorities govern in their organic laws, it seems to me the question is 
easy of solution. But we are told that the vote on the 4th of Janu- 
ary came too late. Too late for what ? Too late to tell us what the 
people of Kansas willed ? Certainly not. 

But we are told that it was irregular and revolutionary for them to 
have expressed their will in any other form, or at any other time, 
than in the form and manner directed in the Lecompton constitution 
itself. That is remarkable, for it gives to the Lecompton constitution 
validity before it assumes .to possess it — makes it the law before it is 
accepted by Congress — and assumes for the people of a Territory, in 
their colonial or dependent condition, the power whenever they see 
proper to call a convention, to make absolute laws, supplanting, by 
their own mere force, the preexisting authority exercised by the ter- 
ritorial legislature established by Congress, and without the consent 
of Congress. But, again, is not this still more remarkable, as coming 
from those same Lecomptonites who contend that even after their 
constitution has successfully passed through all the forms of law, been 
ratified by the people, and approved by Congress, that immediately 
thereafter the people may disregard all its provisions in regard to its 
alteration or amendment, and change, alter, or abolish it at pleasure ; 
and yet, before the constitution is established, while it is yet in fieri, 
or the progress of establishment, that same people can do no act to 
arrest it. Mr. Chairman, both these propositions cannot be true ; and 
common sense has but little difficulty in determining which is true. 
I have already shown that there is no such legality in the proceedings 
which led to the formation of the Lecompton constitution as estops the 
Congress. Indeed, sir, Congress, in the admission of new States, has 
thus far been limited by few rules of legality, technicality, or form. 
It has acted upon the various cases according to the facts which at- 
tended them, ever carrying out the will of the people of the new State, 
however expressed, or however ascertained. One thing the Congress 
has never done, and that is to admit a State into the Union under a 
constitution contrary to the well known wishes of her people. This, 
if ever done, will first be done in Kansas. Her people have expressed, 
in every form they can command, their determined opposition to the 
Lecomi)tou constitution. A majority of nearly ten thousand of her 
people tell you not to accept it as the fundamental organic law of the 
State ; her legislature, by a unanimous vote, beseeches you not to do 




.. It) 

016 094 462 

so ; and even the officers elected under the Lecompton constitution 
itself protest against your doing so. 

" We, the officers elected under said constitution, do most respectfully and earnestly pray 

your honorable bodies not to admit Kansas into the Union under faid constitution, and thn« 

force upon an unwilling people an organic law against their express tvill, and in violation of 

every principle of popular government." 

Signed by Governor, Lieutenant Governor, Secretary of State, State Treasurer, and Auditor. 

Against these solemn and earnest appeals why should we seek to 
admit her under the Lecompton constitution ? Above all, why should 
the south seek to admit her ? What will we gain by it? Mr. Chair- 
man, we shall gain a loss. We shall set instructions, which being 
taught, may return to plague the inventor. This will inevitably he 
the case in regard to the nev/ theories now inculcated for the ready 
overthrow of constitutions by the unrestrained fiat of majorities. We 
show ourselves, perhaps, willing to extend our peculiar institution 
against the will of the majority of those amongst whom we would 
carry it, giving the majority opposed to as, should they have power, 
pretexts for disregarding our right and our property. But if these 
consequences did not follow, we gain no foothold for our slaves in 
Kansas, since the advocates of admission under the Lecompton con- 
stitution themselves tell the people there that they may turn slavery 
out as soon as you get the constitution in. I would have the south 
play no such paltry game. I would rejoice to have Kansas a slave 
State, if she could be permanently so with the consent of her people. 
I will not violate the general principles of free government, whereby 
the American people are authorized to establish their own institutions 
in their own way, for the paltry advantage of having Kansas forced 
into the Union under the Lecompton constitution as a slave State for 
a moment, to be scorned and kicked out instantly thereafter and 
forever. 

But we are told that the admission of Kansas under the Lecompton 
constitution will localize the slavery excitement and give peace to the 
country. 

I believe this to be one of the profoundest delusions that ever pre- 
sented itself to an intelligent mind. Leave a people free to settle 
their own institutions, and they cannot long remain excited. Restrain 
them, and it is the inevitable outbreak of the American heart, north 
and south, and everywhere, to resist you. I believe in my conscience 
that to force the Lecompton constitution upon the people of Kansas 
against their consent, expressed in so many forms as I have shown 
you, will be to sound the tocsin for a wilder, and deeper, and far more 
pervading popular commotion than any you have ever known. It 
will not be confined to Kansas, but, rolling from its level plains, it 
will sweep through the northwestern prairies and the mountains of 
New England, until every hamlet and village, and town and county,, 
will be instinct with excitement. 

On the contrary, do justice to Kansas ; do not to her what you 
would not have done to yourselves ; encompass her not with nice 
technicalities of law ; but suffer her people to speak and act their 
will; extend to them, in fact, what you profess to extend to all in 
theory — the i ight to regulate their domestic institutions in their own 
way^ and my life for it, peace will prevail from one end of our beloved 
country to the other. 



Conservation Resources 
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016 094^0^ 



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